Experts Doubt Pentagon Can Punish Kelly12/01 06:16

   

   WASHINGTON (AP) -- The Pentagon's investigation of Sen. Mark Kelly over a 
video that urges American troops to defy "illegal orders" has raised a slew of 
questions, and some criticism, from legal experts.

   Some say the Pentagon is misreading military law to go after Kelly as a 
retired Navy fighter pilot. Others say the Arizona Democrat cannot be 
prosecuted as a member of Congress. A group of former military prosecutors 
insists he did nothing wrong.

   The Pentagon announced the investigation last week after President Donald 
Trump's social media post accusing Kelly -- and the five other Democratic 
lawmakers in the video -- of sedition "punishable by DEATH."

   Defense Secretary Pete Hegseth said Kelly was facing investigation because 
he is the only one in that group who formally retired from the military and is 
still under the Pentagon's jurisdiction.

   Kelly dismissed the inquiry as the work of "bullies" and said it would not 
deter him and other members of Congress "from doing our jobs and holding this 
administration accountable."

   'It's not totally unheard of'

   Stephen Vladeck, a Georgetown University law professor, said there has been 
a "significant uptick" in courts-martial of retired service members in the past 
decade. While courts have debated the constitutionality, the practice is 
currently allowed. He said there have been roughly a dozen such prosecutions 
across the service branches.

   There are roughly 2 million people who formally retired from the military 
and receive retirement pay, according to a report from the Congressional 
Research Service. Service members are generally entitled to retirement pay 
after completing 20 years of active duty.

   Todd Huntley, a retired Navy captain and judge advocate general, or JAG, 
said it is rare to prosecute retirees for something that happened after they 
retired.

   "It's not totally unheard of," said Huntley, who now directs Georgetown's 
national security law program. "I actually prosecuted a enlisted guy who had 
been retired for 16 years. He was sexually assaulting his adopted daughter. 
Basically no one else had jurisdiction so we prosecuted him."

   A 'ridiculous conclusion'

   Colby Vokey, a prominent civilian military lawyer and former military 
prosecutor, said Hegseth appears to be misreading the Uniform Code of Military 
Justice to justify the Kelly investigation.

   Vokey said Hegseth has personal jurisdiction over Kelly because Kelly is 
entitled to retirement pay. But Vokey said Hegseth lacks subject matter 
jurisdiction because Kelly made his statements as a senator.

   Vokey said case law has evolved to where the military can prosecute an 
active-duty service member for a crime committed off base, such as robbing a 
convenience store. But applying military law to a retired service member and 
"assuming that means every offense ever is kind of a ridiculous conclusion."

   "Let's say you have a 100-year-old World War II veteran who is retired with 
pay and he steals a candy bar," Vokey said. "Hegseth could bring him back and 
court-martial him. And that in effect is what is happening with Kelly."

   Patrick McLain, a retired Marine Corps judge and former federal prosecutor, 
said the cases he has seen of retirees being called back "are more like extreme 
examples of fraud or some of these child pornography cases."

   "I've not seen anything like the kind of the wackadoodle thing they're 
trying to do to Sen. Kelly for essentially exercising his First Amendment right 
to free speech, which they don't like," McLain said.

   'He did it as a civilian'

   Charles Dunlap, a Duke University law professor and retired Air Force 
lawyer, said in an email that military law can restrict speech for service 
members that is protected for civilians under the First Amendment.

   But even if the video was found to have violated military law, a key issue 
may be whether the law can be applied to someone who is retired, Dunlap said.

   A group of former military lawyers, the Former JAGs Working Group, said in a 
statement that Kelly did not violate the Uniform Code of Military Justice.

   "The video simply described the law as it pertains to lawful versus unlawful 
orders," the group said. "It did not suborn mutiny or otherwise encourage 
military members to disregard or disobey lawful orders issued to them."

   Troops, especially uniformed commanders, have specific obligations to reject 
orders that are unlawful. Broad legal precedence also holds that just following 
orders -- colloquially known as the "Nuremberg defense," as it was used 
unsuccessfully by senior Nazi officials to justify their actions under Adolf 
Hitler -- does not absolve troops.

   Kelly and the other lawmakers did not mention specific circumstances in the 
video. Some Democratic lawmakers have questioned the legality of the Trump 
administration's attempts to send National Guard troops into U.S. cities. Kelly 
has pointedly questioned the use of the military to attack alleged drug boats 
off South America's coast, saying he was worried about the military officers 
involved with the mission and whether they were following orders that may have 
been illegal.

   Michael O'Hanlon, director of research in the foreign policy program at the 
Brookings Institution, said any case brought against Kelly likely would be 
thrown out or end in an acquittal.

   O'Hanlon said it might not have been politically smart to "wave a red flag 
in front of the bull" but he does not see the legal grounds for a court martial.

   "Saying that you shouldn't break the law cannot be a crime," O'Hanlon said. 
"But in addition, he did not do it as a military officer. He did it as a 
civilian."

   Separation of powers

   Kelly's status as a senator could block the Pentagon's investigation because 
of constitutional protections for the separation of powers in the U.S 
government.

   The Constitution explicitly shields members of Congress from White House 
overreach, said Anthony Michael Kreis, a constitutional law professor at 
Georgia State University.

   "Having a United States senator subject to discipline at the behest of the 
secretary of defense and the president -- that violates a core principle of 
legislative independence," Kreis said in a telephone interview.

   Kreis said such protections were a reaction to the British monarchy, which 
arbitrarily punished members of Parliament.

   "Any way you cut it, the Constitution is fundamentally structurally designed 
to prevent this kind of abuse," Kreis said.